Feb 8, 2011

As the threats against Israel mount from all directions, the job of the IDF Chief of General Staff is becoming more challenging by the day.

First on the list of threats is Iran. While it is apparently true that the Stuxnet computer virus continues to wreak havoc on Iran's nuclear program, it is also true that Iran remains dedicated to moving forward, despite all obstacles.

Experts agree that within anywhere from a year to four years, if Iran is not stopped, it will become a nuclear power.

In addition to its nuclear weapons program, Iran continues to expand its web of influence and control over the region. Its newest colonial acquisition - Lebanon has now joined Gaza and Syria as an Iranian puppet.

Then there is Egypt. Iran's dictator-in-chief Ali Khamenei has spent the two weeks since the anti-regime protests began in Egypt bragging that the unrest shows Iran's star is rising. The "Islamic awakening" hearkened by the 1979 Iranian revolution is unfolding before our eyes, he says.

And there is a body of evidence which suggests that Khamenei is on to something. In an interview on the BBC's Persian service Sunday night, Kamal al-Halbavi, a senior member of Egypt's Muslim Brotherhood, expressed hope that Egypt will have "a good government, like the Iranian government, and a good president like Mr. [Mahmoud] Ahmadinejad, who is very brave."

On Sunday, Egyptian Vice President Omar Suleiman conducted talks with representatives of the Muslim Brotherhood. Thanks to the Obama administration's support for the Brotherhood, the outlawed Islamic totalitarian movement is now seen as a legitimate political force in the post-Mubarak Egypt.

The Obama administration's support for the group against Egyptian President Hosni Mubarak points to the third great security challenge facing Israel today. The IDF will now have to develop a fighting doctrine that takes account of the US's apparent abandonment of strategic reason.

Political developments in Egypt, as well as the sabotage of the natural gas pipeline from Egypt to Israel at el-Arish, show that the southern front is active again after 30 years. The IDF needs to prepare for the possibility of a conventional war in the south and the north. It will have to relearn how to fight a war in the desert. New weapons systems will have to be developed and procured. Troops will have to receive expanded training.

The regular army will have to be vastly expanded. The military budget will have to increase massively. Intelligence assets, already stretched, will have to be significantly augmented and adapted to meet new challenges.

In short, the ways the IDF thinks about war, plans for war, arms for war, trains for war and wages war are all going to have to change.

In light of these awesome challenges, the IDF's next chief of general staff will have to have the attitude of a revolutionary as he guides the IDF through massive change, and commands it in complex and perhaps existential battles.

Unfortunately, chances that such a commander will arise received a blow last week when Attorney General Yehuda Weinstein decided to force the government to cancel its decision to appoint Maj. Gen. Yoav Galant to replace outgoing Chief of Gen. Staff Lt. Gen. Gabi Ashkenazi next Tuesday.

Galant was the commander that Prime Minister Binyamin Netanyahu and Defense Minister Ehud Barak wished to see lead the IDF at this time. With his reputation for fearlessness, innovation and determination to win wars, Galant's appointment seemed like a reasonable one.

This was particularly true in the face of Ashkenazi's obvious aversion to the use of force. Ashkenazi has taken great pride in his consistent refusal to prepare the IDF to launch a preemptive strike against Iran's nuclear facilities against the expressed wishes of Netanyahu and Barak.

Ashkenazi upholds his command of the IDF during Operation Cast Lead as a textbook case of the effective use of limited force. The veracity of this claim is an open question. In the event, Ashkenazi sent half the army into Gaza and when they left, they left without Gilad Schalit. Moreover, they left with Hamas still firmly in charge of the international border with Egypt.

The depth of Ashkenazi's involvement in the campaign to discredit Galant and torpedo his appointment is unknown although it is clear that he did play a role in galvanizing the campaign against Galant at least initially. People close to the General Staff insist that Ashkenazi's determination to scupper Galant's appointment, like Barak's decision to shorten Ashkenazi's tenure, was motivated by personal rivalries and animosity. Strategic issues played at best a secondary role.

The case against Galant has nothing to do with his military talents. Galant apparently took control of state land around his homestead on Moshav Amikam without authorization. To be sure, this was wrong.

But his actions apparently were not criminal acts. Like anyone else, he could have been expected to pay an administrative fine and perhaps be ordered to return the lands to the state in the condition in which he found them.

When Barak chose Galant as the next IDF commander, he assumed that the appointment would go through despite Ashkenazi's opposition and the media campaign to discredit Galant. It is the prerogative of the defense minister to select the chief of general staff. Netanyahu accepted Barak's choice and the government approved it. The Turkel Commission, empowered to ensure that senior civil servants are eligible for their offices, found that Galant's misappropriation of state lands was not a disqualifying act and approved his appointment.

But then the legal fraternity decided to move in and teach us all an abject lesson about the state of Israeli democracy as new military threats multiply by the day. The legal fraternity decided to remind us of the legacy of retired Supreme Court president and former attorney general Aharon Barak.

And it isn't pretty.

In 1986, then associate justice Barak agreed to have the High Court of Justice rule on a petition submitted by one Yehuda Ressler demanding that the court cancel the exemptions from military service the government provides to yeshiva students. The petitioner had no personal stake in the case. And as a result, he had no standing before the court. Indeed, throughout the 1970s, Ressler had repeatedly petitioned the court and been denied a hearing due to his lack of standing.

Yet Barak agreed to hear the case. Since Barak ruled in favor of the state, upholding the draft exemption for yeshiva students, Barak's move went largely unremarked. But the precedent he set was revolutionary.

From then on, anyone could petition the court on anything. Everyone had standing. Everything was judiciable. The Court was suddenly empowered to strike down governmental appointments and decisions, IDF orders, and laws of the Knesset.

Since the Supreme Court gets to decide which cases it will hear, and since Supreme Court justices have largely uniform worldviews, it has used its usurped power to shape the political and social direction of Israel, to cow the Knesset into subservience, to constrain the powers of the government to lead the country and to limit the ability of the IDF to defend the country.

This state of affairs is what enabled the Green Movement - an environmental political party with no direct interest in Galant's homestead on Moshav Amikam - to petition the Supreme Court demanding that his appointment be cancelled due to his apparent misappropriation of state land. The very fact that the Supreme Court agreed to hear the petition in the first place was an assault on governmental power.

Still, since the issue at hand is administrative, not criminal, it is far from clear that the Supreme Court would have ruled against Galant's appointment.

But then Weinstein decided that he didn't feel like defending the appointment before the Court and that was that.

Until the era of Aharon Barak, the attorney general's job was to provide legal counsel to the government and represent its decisions before the courts. After Barak's legal revolution, however, the job of the attorney general became the equivalent of an imperial high commissioner. Rather than provide counsel to the government, the attorney general today tells the government what it is allowed to do. Instead of providing the prime minister with legal support for his decisions, the attorney general now defines the law to accord with his own preferences and personal convenience and so wrongly limits the government's power to govern.

Weinstein forced the government to cancel Galant's appointment last week not by claiming that Galant's misuse of government land was illegal. Weinstein refused to defend Galant against the Green Movement's petition because he said he had "ethical problems," with representing the case.

Before Barak's legal revolution, Weinstein would never have considered acting as an ethical arbiter of governmental power. And like the Supreme Court's decision to hear the Green Movement's case, Weinstein's decision not to defend Galant's appointment was a direct assault at the foundation of Israel's democratic system.

The abuse of power inherent to Weinstein's action was exposed in all its ugly irony on Sunday when the media revealed that Weinstein himself is under criminal investigation for illegally employing a foreign worker in his home. Like Galant's misuse of state land, Weinstein's decision to hire a foreign worker to clean his house does not make him a criminal.

It makes him human. Everyone makes mistakes.

Weinstein's belief that he has a right to serve as attorney general despite his ethical lapse while Galant should be denied his right to serve as chief of general staff due to his ethical lapse tells us that, like his colleagues in the legal fraternity, Weinstein has engaged in deeply prejudicial behavior. If everyone is guilty of something, then by finding Galant unfit to serve, Weinstein employed an unfair double standard.

It is this basic unfairness and discrimination that is the foundation of Barak's legal revolution. Because if everyone has standing, and everything is judiciable, then by definition, deciding who gets a hearing and what will be judged involves the use of prejudicial double standards. Only clear criteria for judicial standing and judicial writ prevent the rule of law from deteriorating into the rule of lawyers.

In what should be viewed as a disgraceful display of cowardice, Netanyahu and Barak meekly accepted Weinstein's decision and dumped Galant. In his place they appointed Maj. Gen. Benny Gantz as the next Chief of General Staff. Gantz is reputed to be an unimaginative commander with an aversion to risk.

In the meantime, Gantz's appointment is also being challenged in the Supreme Court. The family of fallen IDF soldier Mahdat Youssef who died in Nablus in 2000 while under Gantz's command claims that Gantz behaved wrongly during the battle and should be disqualified from serving as chief of staff. The legal issues involved are, well, frankly unknown. But trust the justices. If they think it serves their interests to bar Gantz from serving, they'll hear the petition.